Partisan Pennsylvania Voter ID Law Wrongly Upheld by Court

August 15, 2012

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Pennsylvania Commonwealth Court Judge Robert Simpson, a Republican, declined to issue an injunction against the state’s new voter ID law in a ruling today, despite the preponderance of evidence that the new law is unjust, unnecessary and discriminatory. (See my “Ten Takeaways From Pennsylvania’s Voter ID Trial” for background on the case.)

Simpson sided with the state on a challenge brought by the ACLU and the Advancement Project. He acknowledged that “petitioners’ counsel did an excellent job of ‘putting a face’ to those burdened by the voter ID requirement,” but concluded that “petitioners did not establish, however, that disenfranchisement was immediate or inevitable.” On the contrary, Simpson asserted that the law’s “provisions are neutral and nondiscriminatory and apply uniformly to all voters,” and that he “was convinced that [the law] will be implemented by commonwealth agencies in a non-partisan, even-handed manner.”

Instead of forcing the state to prove that the voter ID law was necessary, Simpson put the burden of proof on the plaintiffs’ to show that the law violated the state constitution, which he said they failed to do. “Any party challenging a legislative enactment has a heavy burden, and legislation will not be invalidated unless it clearly, patently and plainly violated the constitution of this commonwealth,” he wrote. “Any doubts are to be resolved in favor of a finding of constitutionality.”

This was a head-scratching ruling, and one at odds with state courts in Missouri and Wisconsin, which found that voter ID laws restricted the fundamental right to vote of citizens. Instead, Simpson relied on a controversial 2008 ruling by the Supreme Court in Crawford v. Marion County, which upheld Indiana’s voter ID law even though the state failed to provide any evidence of in-person voter fraud to justify the law. Pennsylvania, like Indiana, stipulated at the beginning of the voter ID trial that “there have been no investigations or prosecutions of in-person voter fraud in Pennsylvania; and the parties do not have direct personal knowledge of any such investigations or prosecutions in other states.” But in the Crawford case the Supreme Court found that the mere threat of voter fraud was enough to justify a voter ID law, which set a chilling precedent for voting rights advocates. (That “threat” is virtually nonexistent. A major investigation from 2002–07 by the Bush Justice Department failed to prosecute a single case of in-person voter impersonation. There were thirty-nine times as many deaths by lightning from 2000–07 as there were instances of voter impersonation.)

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Despite the Crawford ruling, it’s hard to take seriously Simpson’s claim that the Pennsylvania voter ID law is nonpartisan and nondiscriminatory.

Voter ID laws are partisan. Of the ten states that have passed strict voter ID laws since 2005, all are controlled by Republicans. These laws were first drafted by the American Legislative Exchange Council, a powerful ally of the GOP. Mike Turzai, majority leader of the Pennsylvania House, said the voter ID law “is gonna allow Governor Romney to win the state of Pennsylvania.” The consulting firm in charge of educating voters about the law is run by Pennsylvania Republicans with close ties to GOP Governor Tom Corbett and the Romney campaign. All of the top officials in Pennsylvania in charge of implementing the law are Republicans. How much more proof of partisanship does one need?

Voter ID laws are discriminatory. Those without IDs are disproportionately people of color who tend to vote Democratic. According to the Pennsylvania Department of Transportation, 9.2 percent of registered voters in Pennsylvania lack state-issued voter ID, but the number is 18 percent in Philadelphia, which is 44 percent African-American. Another study based on the state’s data found that voters in predominately black precincts in Philadelphia are 85 percent more likely than voters in predominately white precincts to lack state-issued ID. Voters in Hispanics and Asians neighborhoods are also twice as likely to lack IDs relative to white voters.

Finally, on a practical level, Pennsylvania is unprepared to implement the law. “Petitioners did not establish that greater injury will occur from refusing to grant the injunction than granting it,” Simpson claimed. “This is because the process of implementation in general, and of public outreach and education in particular, is much harder to start, or restart, than it is to stop.” But at the trial, Pennsylvania officials admitted that they didn’t know how many voters lack the correct ID and have allocated funding for only 75,000 “free” voter ID cards, even though the department of transportation found that ten times as many voters may lack valid ID. Nor is the state equipped to handle all of the people who will need to get ID. “There were 71 PennDot offices, but 13 of them were only open one day a week,” Slate’s Dave Weigel noted. “Nine Pennsylvania counties have no PennDot office at all.” Added the Philadelphia Inquirer: “In recent visits to the Department of Transportation’s offices, the witnesses said, they found long lines, short hours, and misinformed clerks, which made obtaining voter identification cumbersome, and in some cases impossible, for those who don’t have supporting documentation.”

According to the department of transportation, 758,000 registered voters do not have state-issued ID. Matt Barreto, professor of political science at University of Washington, found that more than a million registered Pennsylvania voters lacked sufficient ID and that 379,000 don’t have the underlying documents, such as a birth certificate, needed to obtain the right ID. Simpson dismissed these studies and claimed that voters without ID would be able to vote with an absentee ballot (providing that they can get a doctor’s note confirming their illness) or with a provisional ballot (which may or may not be counted). Simpson’s logic in this regard doesn’t make much sense. It would be a lot easier to block the voter ID law and run the 2012 election like every other election in Pennsylvania history than to implement a costly, confusing and hasty new law.

I disagree with the ruling on the merits on a couple of grounds. First, the judge seemed to downplay the burden placed on voters needing to go out and get the voter i.d., such as the costs to poor voters of getting the underlying documents. While burdens on voters would be justified if the law actually served an important purpose, the fact that there is no evidence of impersonation voter fraud to justify a voter i.d.—a point which cannot be emphasized enough—the law would be imposing a burden on voters for no good reason. And of course it is being imposed for a bad reason: these laws have been favored almost exclusively by Republican legislators likely out of the belief that it will cause a modest decline in Democratic turnout…. Finally, the judge points to “as applied” challenges as the solution. But these are expensive and difficult to bring—people who lack an i.d. are going to be among the least connected to the legal system, and there is no doubt that most of these voters will now fall through the cracks. Again, if there were a solid reason for requiring the i.d., this cost would be more justifiable. But there isn’t.

The plaintiffs are appealing the ruling to the Pennsylvania Supreme Court, which is split 3-3 between Democrats and Republicans. If they deadlock, Simpson gets the final word—in which case, Republicans win and democracy loses.